MICHAEL J. SNIFFEN / AP 29sep2006

WASHINGTON — Attorney General Alberto Gonzales, who is defending President
Bush's anti-terrorism tactics in multiple court battles, said Friday that
federal judges should not substitute their personal views for the president's
judgments in wartime.

He said the Constitution makes the president commander in chief and the
Supreme Court has long recognized the president's pre-eminent role in foreign
affairs. "The Constitution, by contrast, provides the courts with
relatively few tools to superintend military and foreign policy decisions,
especially during wartime," the attorney general told a conference on the
judiciary at Georgetown University Law Center.

"Judges must resist the temptation to supplement those tools based on
their own personal views about the wisdom of the policies under review,"
Gonzales said.

And he said the independence of federal judges, who are appointed for life,
"has never meant, and should never mean, that judges or their decisions
should be immune" from public criticism.

"Respectfully, when courts issue decisions that overturn long-standing
traditions or policies without proper support in text or precedent, they cannot
— and should not — be shielded from criticism," Gonzales said. "A
proper sense of judicial humility requires judges to keep in mind the
institutional limitations of the judiciary and the duties expressly assigned by
the Constitution to the more politically accountable branches."

His audience included legal scholars and judges, including Justice Clarence
Thomas, one of the Bush administration's most reliable supporters on the Supreme
Court.

The attorney general did not refer to any specific case or decision but only
to wartime, military and foreign affairs cases in general.

Gonzales has sent Justice Department lawyers into federal courts from coast
to coast defending Bush's detention of terrorist suspects at Guantanamo Bay,
Cuba, his plans to try some of them before military tribunals and his use of the
National Security Agency to wiretap Americans without court warrants when they
communicate with suspected terrorists abroad.

Over administration objections, the Supreme Court ordered that detainees
could challenge aspects of their imprisonment in federal courts and overturned
Bush's plans for military tribunals, forcing Bush to ask Congress to approve a
new version of the panels.

A handful of federal district judges either ordered an end to the warrantless
wiretapping or agreed to hear court challenges to it. Opponents of the plan
argue the NSA program violates the Foreign Intelligence Surveillance Act's
requirement that the government get a warrant from a court that meets in secret
before wiretapping Americans to gain intelligence information.

The administration contends that despite the statute's language, the
president has inherent authority from the Constitution to order such
eavesdropping without court permission. Justice lawyers also have argued that
the challenges to the NSA program should be thrown out of court because trials
would expose state secrets. Most of the judges' rulings and proceedings have
been stayed pending appeal.

Gonzales also said he thought more states should move away from having judges
stand in partisan elections to keep their seats. Gonzales himself as a Texas
Supreme Court justice "had to raise enough money to run print ads and place
television spots around the state in order to retain my seat."

In such contested elections, "most of the contributions come from
lawyers and law firms, many of whom have had, or will have, cases before the
court," Gonzales said. "The appearance of a conflict of interest is
difficult to dismiss."

He noted favorably that some states have adopted other ways of picking
judges, including merit selection and appointment with simple up-or-down
retention elections rather than contested campaigns. With polls showing many
voters think judges can be swayed by campaign contributions, Gonzales said,
"If Americans come to believe that judges are simply politicians, or their
decisions can be purchased for a price, state judicial systems will be
undermined."